SMM alias GSM v CAKM alias CAKM [2017] KECA 522 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that long cohabitation cannot create a marriage where the man already had a statutory wife, so no property sharing was possible.
What this practically means
#Executive summary
#Key legal issues
#Capacity to contract a customary marriage during a subsisting statutory marriage
No valid customary marriage could be contracted; Section 37 of the Marriage Act barred it
The respondent married D N M under the Marriage Act on 29 April 1967 and that marriage had not been dissolved when he allegedly married the appellant under Kamba customary law. Section 37 of the Marriage Act renders a person married under the Act incapable of contracting a valid marriage under native law or custom during its subsistence. This position was affirmed in Irene Njeri Macharia v Margaret Wairimu Njomo. The respondent's affidavit purporting to solemnize a customary marriage could not invalidate the express statutory provision.
Presumption of marriage from long cohabitation
The presumption cannot arise where a statutory marriage bars capacity, and the appellant knew the respondent was a married man
Counsel urged the Court to presume marriage from long cohabitation, citing Beth Nyambura Kimani and Hortensiah Wanjiku Yahweh, but did not address the legality issue under Section 37. The appellant admitted she knew the respondent was a married man when the relationship began and ought to have exercised due diligence to establish the legal status of that marriage but did not. The presumption doctrine cannot supplant express statutory provisions.
Consequences of absence of marriage for property distribution
No matrimonial property exists for distribution; each party retains property solely registered in their name
Section 6 of the Matrimonial Property Act, 2013 defines matrimonial property by reference to the matrimonial home and property acquired during the subsistence of a marriage, and Section 17 of the Married Women Property Act, 1882 presupposes a husband and wife. Without a marriage there is no matrimonial property. Consequently the appellant has no claim over the respondent's Katelembo plot and house, and the respondent has no claim over plots, shares and other property registered in the appellant's name.
Claim to company property as a shareholder
The claim was misplaced; the company is a separate juristic person and was not a party
The appellant alleged the company owned substantial properties or that the respondent used company funds to buy personal properties, but no evidence supported the latter. Citing Salomon v Salomon, the Court held the company is a legal entity separate from its shareholders and directors; it was neither party to the High Court suit nor joined in the appeal, so no order could issue against it or its property. Any such claim must be brought by or against the company.
Legal principles established
#- A person married under the Marriage Act has no capacity to contract a customary marriage during the subsistence of the statutory marriage, and no presumption of marriage can arise from cohabitation in such circumstances
- The presumption of marriage cannot override express statutory provisions prohibiting a further marriage
- In the absence of a marriage between the parties there can be no matrimonial property for distribution between them
- Neither party to an unlawful relationship can claim a share of property solely owned by the other on the basis of the alleged marriage
- A company is a separate legal entity and no order can issue against it or its property where it is not a party to the proceedings
Court orders
#- 1.A permanent injunction restraining the respondent, his agents and/or servants from entering upon and/or evicting the appellant from her home on plots in Katelembo Athiani Muvuti Farmers and Ranching Co-operative Society held in her name
- 2.Dismissal of the rest of the appellant's prayers in the plaint as rightly dismissed by the trial court
- 3.The appellant awarded one quarter of the costs of the appeal and one quarter of the costs of the High Court proceedings
- On appeal from
- High Court of Kenya at Machakos
- HCCC No. 58 of 2009
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Act over an appeal from the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SMM alias GSM v CAKM alias CAKM [2017] KECA 522 (KLR)", Case Analysis (2017). Civil Appeal No. 2 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/522/eng@2017-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.